In the ongoing efforts to control over crowding and illegal boarding houses, Richard Kaufman, the town attorney, has spent the last year crafting a proposed zoning ordinance text amendment that would define family and create a limit on the number of people who could occupy a residential dwelling based on a formula that takes into account the floor area. Kaufman briefed the Planning Commission on his latest draft at a work session March 19. The proposal is tentatively set for a May 3 public hearing.
"We already have a zoning ordinance for the number of occupants for a dwelling unit … basically defined as a family," Kaufman said. "But it suffers from several defects … there is no way to define the relationship."
THE PROPOSED ORDNANCE, if passed, would be a complement to an existing regulation in the town's building code. Kaufman said that the zoning code would be more stringent than the building code. It would also be a criminal violation if someone is found in violation of the zoning code with a state maximum of a $1,000 fine.
Members of the Planning Commission had hoped the town attorney would be able to strengthen the code without relying on the use of the word family, however, Kaufman said that would be a mistake.
"The Planning Commission had asked me to try to level the family aspect, get away from it altogether. I believe we could … but I don't recommend it. Our whole residential-use zoning is predicated on family use. We would have to redo the whole zoning ordinance," Kaufman said. "To remove family would mean a fraternity house could use a residential dwelling as long as it conformed; a restaurateur could have a dormitory for his workers."
Kaufman's compromise was to define family as those related by blood, marriage or other legal guardianship up to first cousin.
It would also permit up to four people, any one of which is unrelated or two unrelated people and their children to live together as family.
THE PROPOSAL ALSO places a limit on the number of people — excluding children — based on a formula, which includes the floor area. For a single-family home or two-family dwelling, the maximum number of adults could not exceed the quotient of the floor area of the dwelling unit divided by 300. For a multifamily dwelling the floor area is divided by 200.
Kaufman said, that means for example, a split foyer in Chandon could legally accommodate six people, as could a single-family home in Hunter's Creek. While a home in Barker Hill could have eight adults.
"We would be creating an absolute occupancy limit," Kaufman said.
The formula, he said, would be defensible in court and should an inspector find a home where the family is simply too large, the building code would "kick in" for safety reasons, he said.
Kaufman also suggested that staff be directed to look into other possible ways of controlling over occupancy, such as reviewing the ordinances imposed by other jurisdictions, for instance Manassas.
HENRY BIBBER, the director of community development, said the inspectors are finding a variety of violations, namely families renting out space to others while also still living in the home or extremely large extended families occupying a dwelling unit. Town officials, he said, had even found a case where an employer had set up dormitory-style housing for his workers.
"I suspect the claim of family is being exaggerated," said Commissioner Robert Burk.
"We're getting better at identifying persons who seek to avoid enforcement by not being truthful. For example, some times people advertise rooms for rent. We make a note of the advertisement for renter, so when they say they are all related, we can say, 'yes, but … ,'" Bibber said.
Bibber also said some apartment and condominium management companies are getting better about educating themselves on Herndon's occupancy rules and enforcing them.
"I think we're getting closer, but there is no silver bullet," said Carl Sivertsen, the commission chair.